Interpreting the Paris Agreement In Its Normative Environment

Interpreting the Paris Agreement In Its Normative Environment Presented by: Professor of International Environmental Law, Faculty of Law, Oxford Date: Current Legal Problems, UCL, 8 February 2024 Outline - Logic (and Limits) of the 2015 Paris Agreement - Atomistic Interpretations of the Paris Agreement's GHG Mitigation Obligations - Centrality of National Determination - Developing a Strengthened Interpretative Approach Anchored in the Normative Environment - • Science • Relevant Custom • Other Treaties • Principles Applying a Strengthened Interpretative Approach The Logic of the 2015 Paris Agreement - Broad participation followed by deepening commitments over time • Global Goals Arts 2 and 4 • Nationally Determined Contributions Art 4.2 • Ambition Cycle  Five yearly NDCS Art 4.9  Transparency Art 13  Progression, Highest Possible Ambition, CBDRRC Art 4.3  Global Stock take Art 14 Is it working? Seemingly... - 169 Parties have submitted a second NDC- 74% of them stronger than a state's first NDC (NDC Synthesis Report 2022) - 89% of global emissions are covered by net zero targets CAT, 2024 - Announced pledges estimated to lead to 1.7°C temperature rise by 2100 IEA, 2022 - Without the Paris Agreement we would be on track to 3.7-4.8 °C GST Technical Dialogue Synthesis Report, 2023 Yet... - Not on track to 1.5°C or well below 2°C - Average annual GHG emissions during 2010- 2019 highest in human history - Overshoot inevitable (IPCC, AR6, WG-3, April 2022) - 2023 warmest year on record NOAA, 2024 - Latest NDCs (implemented) put us on track to GHG 10.6% above 2010 levels in 2030 (NDC Synthesis report, 2022) Atomistic Interpretations Privilege National Determination - Paris Agreement Article 4.2: Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. - • Procedural obligations, obligations of conduct, good faith expectations • No listed 'features' of NDCs - national determination? • No restrictions on conditions/caveats to NDCs - national determination? Paris Agreement Article 4.3: Each Party's successive nationally determined contribution will represent a progression beyond the Party's then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. • No criteria or mandate for defining progression, highest possible ambition or CBDRRC - national determination? National Determination is all pervasive: Explicit - Article 14 (3): The outcome of the global stock take shall inform Parties in updating and enhancing, in a nationally determined manner, their actions and support in accordance with the relevant provisions of this Agreement... National Determination Is All Pervasive: Implicit - Art 4.8: In communicating their nationally determined contributions, all Parties shall provide the information necessary for clarity, transparency and understanding in accordance with decision 1/CP.21 and any relevant decisions of the Conference of the Parties serving as the meeting of the Parties to this Agreement - Decision 1/CP.21, para 27: Agrees that the information to be provided by Parties... may include, as appropriate, inter alia...... - Decision 4/CMA.1, para 7: Decides that, in communicating there .. [NDCs] ... Parties shall provide the information ...as applicable to their nationally determined contributions... National Determination Is Consistently Reinforced - Outcome of the first Global Stock take, 2023 - Para 28, Decision-/CMA.5 - ...calls on Parties to contribute to the following global efforts, in a nationally determined manner .... • (a) Tripling renewable energy capacity globally... • (b) Accelerating efforts towards the phase-down of unabated coal power.... • (d) Transitioning away from fossil fuels in energy systems...' - Reaffirms the nationally determined nature of nationally determined contributions...! - Para 39, Decision-/CMA.5 A Strengthened Interpretative Approach - Article 31(1), Vienna Convention on the Law of Treaties • "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" - Article 31(3)(c), Vienna Convention on the Law of Treaties • "There shall be taken into account, together with the context:... (c) any relevant rules of international law applicable in the relations between the parties." The Normative Environment - Preamble, Recital 4; Article 14; Glasgow Climate Pact, 2021, Sharm El Sheik Implementation Plan, 2022 UAE Consensus, 2023 • Context: States' responses must be guided by the 'best available science' IPCC's AR6 'deep, rapid, and sustained reductions in greenhouse gas emissions' - Article 2 and 4, in the light of Glasgow Climate Pact, 2021, Sharm El Sheik Implementation Plan, 2022, and the UAE Consensus, 2024 • Object and Purpose: emphasis on temperature limit of 1.5°C and net zero by mid century The Normative Environment: Relevant Rules Of International Law Seamless Web Of Interlocking Norms? - - Harm Prevention - Standard of Due Diligence • Object, purpose, and goals of the UNFCCC and Paris Agreement • Expectation of 'highest possible ambition' • Nature and degree of harm in the absence of due diligence • Expectation of good faith Applicable Human Rights treaties and instruments • Paris Agreement preamble recital 11 • GA A/RES/76/300 recognizes the human right to a clean, healthy and sustainable environment, its relationship to other rights and existing international law, and the importance of full implementation of MEAS - Principles of International La • Cooperation • Good Faith • Sustainable Development • CBDRRC • Precaution • Inter-generational Equity Application: Limits to National Determination - Expectation of a high standard of due diligence in NDCs - Benchmarks for progression, highest possible ambition and fairness Promise and Limits - Standard for due diligence for States, and benchmarks for progression, ambition and fairness • Strengthened NDCs that begin to bridge the gap between current NDCs and global goals • Enhanced accountability for NDCs with more concrete standards and benchmarks - International law is a seamless web of inter-locking obligations - particular treaties do not function as atomistic reflections of consent in that area - But 'It is the duty of the Court to interpret the Treaties, not to revise them. Interpretation of Peace Treaties Advisory Opinion (1950)